Republic of Ireland
Where legislation governing imprisonment for non-payment of a debt would continue to affect the Plaintiff even if the order under challenge were quashed, the High Court proceeded with a hearing addressing the legislation's constitutionality.
This case concerned two issues. First, the Plaintiff challenged the validity of an order for her arrest and imprisonment for failing to comply with an instalment order. Secondly, the Plaintiff argued that the legislation under which the order was made was incompatible with the Constitution and the European Convention on Human Rights. The Defendants proposed that the original imprisonment order be quashed and the matter remitted to the District Court. They argued that it was unlikely that the Plaintiff would be imprisoned if a more realistic instalment order was put in place.
The High Court held that an order quashing the imprisonment order would not render the issue of the legislation's constitutionality moot.
In declining merely to quash the imprisonment order, Laffoy J stated that this would fail to address the substance of the Plaintiff's case.
The possibility of the Plaintiff being committed in the future was not the relevant test. Instead, "the test is whether the impugned legislation has already actually or potentially affected the Plaintiff's rights or interests". Significantly, Laffoy J found that if the legislation escaped scrutiny, the Plaintiff's right to liberty could still be affected by the very same legislative procedures in the future. Laffoy J adopted language used in the Canadian case of Borowski v. Canada, stating "there remains a live controversy - whether the impugned legislation is valid...more importantly, there is a live controversy as to the plaintiff's potential treatment as an indigent judgment debtor by State authorities, in particular, the District Court, in the future in the event of the Credit Union pursuing such a remedy."
Points of note
The High Court did not consider that it would be issuing an "advisory judgment" in ruling on the constitutionality and compliance with the Convention of the impugned legislation. The judgment would determine issues not only regarding the historic treatment of the Plaintiff by the Credit Union and the District Court, but also her potential future treatment as a judgment debtor.